1. The case originated in an application (no.
47579/99) against the Republic of Bulgaria lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by Mr Hristo Peshev Raichinov,
a Bulgarian national who was born in 1935 and lives in Sofia (“the
applicant”), on 8 January 1999.

2. The applicant was represented by Ms I. Lulcheva
and Ms Y. Vandova, lawyers practising in Sofia. The Bulgarian Government
(“the Government”) were represented by their Agents, Ms M. Pasheva
and Ms M. Kotzeva, of the Ministry of Justice.

3. The applicant alleged, in particular, that
his conviction and punishment for having expressed, in purely neutral
terms, his personal opinion about the deputy Prosecutor-General, had
been in breach of his freedom of expression.

4. The application was allocated to the First
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of
the Convention) was constituted as provided in Rule 26 § 1.

5. On 1 November 2004 the Court changed the composition
of its Sections (Rule 25 § 1) . This case was assigned to the newly
composed First Section (Rule 52 § 1).

6. By a decision of 1 February 2005 the Court
(First Section) declared the application partly admissible.

7. Neither the applicant, nor the Government filed
additional observations on the merits.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. At the relevant time the applicant was the
head of the Ministry of Justice’s division responsible for the financial
and logistical support for the judicial system. In this capacity, he
sometimes attended the meetings of the Supreme Judicial Council –
the body responsible for, inter alia, allocating the judicial budget. The Supreme Judicial
Council consists of twenty-five members, including the chairpersons of
the Supreme Court of Cassation and the Supreme Administrative Court,
and the Prosecutor-General. Its meetings are presided over by the Minister
of Justice.

9. The Supreme Judicial Council held a meeting
on 15 December 1993, at which the issue of the end-of-year bonus for judges,
prosecutors, and investigators was discussed. The applicant attended
the meeting, as he usually did in cases when budgetary matters were
considered. The deputy Prosecutor-General, Mr S., who was a member of
the Council, was also present.

10. At some point during the meeting, after commenting
the provisions of the State Budget Act, the applicant said: “You have
decided to have financial matters dealt with by Mr S. For me he is not
a clean person...”. He then added: “I can prove this”. The Prosecutor-General
reacted vehemently, asking the applicant to leave the room. The applicant
tried to continue but was interrupted by Mr S. who asked him to clarify
what he meant by “unclean person”. The Minister of Justice intervened
and requested the applicant to retract the words “unclean person”.
The Prosecutor-General reacted immediately: “There is no retraction,
there are prosecution authorities. This is already a problem, this is
already a crime”. The Minister insisted on the applicant apologising
for the words “unclean person”. Thereupon the applicant said: “Alright,
I apologise”. Because of the tense situation all financial matters
which were due to be discussed at the meeting were adjourned.

11. Immediately after the meeting the Prosecutor-General
requested a copy of the minutes. He received it on 27 December 1993
and on 12 January 1994 sent it to the Sofia City Prosecutor’s Office
with instructions to carry out a preliminary inquiry with a view to
opening criminal proceedings against the applicant. On 11 February 1994
the Sofia City Prosecutor’s Office transmitted the case file to the
Sofia District Prosecutor’s Office with instructions to open criminal
proceedings against the applicant for insult. The investigation was
to be performed not by an investigator, as would usually be the case,
but by a prosecutor.

12. On 16 February 1994 the Sofia District Prosecutor’s
Office instituted criminal proceedings against the applicant for “having
said publicly ‘for me he is not a clean person’ in respect of [Mr
S.] in his presence ... which was degrading for the latter’s dignity”,
contrary to Article 148 § 1 (1), (3) and (4) in conjunction with Article
146 § 1 of the Criminal Code.

13. On 20 April 1994 the applicant was charged.

14. The investigation was concluded on 16 June
1994 and the applicant and his counsel were allowed to consult the case
file. After having done so, counsel for the applicant requested that
all members of the Supreme Judicial Council who had been present at
the meeting be questioned and that an expert report be prepared to compare
the audio tape of the meeting with the written minutes. The prosecutor
in charge of the investigation refused, reasoning that the facts of
the case had been elucidated by the evidence already gathered, which
supported the accusation.

15. The applicant was indicted. The trial against
him took place on 11 April 1995 at the Sofia District Court. The court
heard two witnesses: the alleged victim of the insult, Mr S., and another
member of the Supreme Judicial Council. Mr S. stated that it was difficult
for him to say whether the applicant’s remark had changed the Supreme
Judicial Council’s opinion of him. The other witness stated that sometimes
the discussions in the Council were quite heated but that no one had
ever used such words or made such remarks. Three other witnesses called
by the prosecution failed to show up and the court struck them out of
the evidence, holding that the circumstances of the case had been sufficiently
elucidated through the testimony of the witnesses who had been questioned
and through the written evidence. Counsel for the applicant did not
reiterate the request that all members of the Council be summoned as
witnesses, instead stating that the facts had been fully clarified.

16. After that the court heard the parties’
closing argument. Counsel for the applicant pleaded for a verdict of
not guilty, relying, inter alia, on Article 10 of the Convention. She argued that
the words “for me he is not a clean person” were only an expression
of the applicant’s personal opinion about Mr S. The applicant’s
words were objectively not rude, vulgar or insulting. He had simply
exercised his right to voice what he thought about another person, in
purely neutral terms. To equate this with an insult would mean that
only those who had a favourable opinion of Mr S. would be allowed to
express it. In her view, the entire case had been sparked by the Prosecutor-General’s
vindictiveness.

17. In a judgment of 12 April 1995 the Sofia District
Court found the applicant guilty as charged and sentenced him to a fine
of 3,000 old Bulgarian levs (BGL) and to a public reprimand. The court
held as follows:

“The actus reus consisted of uttering words which were humiliating
and disparaging for [Mr S.] in his presence. It is not disputed ...
that the accused ... said in respect of [Mr S.] ‘For me he is not
a clean person’. The expression has an insulting character, because
it dishonours [Mr S.]. It contains a disapproval of his ethical and
moral qualities, which is irreconcilable with his being in charge of
the budgetary funds of the judiciary. In this fashion the personality
of [Mr S.] and his authority in front of the other members of the [Supreme
Judicial Council] were disparaged. ‘Not a clean person’ has only
one interpretation, that the person concerned has a tainted consciousness
and lacks morality. Even if this is the [applicant’s] personal opinion
about the qualities of [Mr S.], the remark was aimed at affecting the
honour and the dignity of [Mr S.]. Criticism ..., especially when it
comes to the public manifestations of persons who represent state institutions,
has to be consistent with the rules of society, ethics and the common
rules of decency and morality. These must not be trampled on under the
pretence that the personal opinion about another is a matter of perception
and [represents the exercise] of the constitutional right to freedom
of expression... It is unconstitutional and criminal to criticise in
an insulting form, as in the case at hand...

The offence was intentional... It was committed
in public, in front of twenty-five members of the Supreme Judicial Council
and the deputy-Minister of Justice. This increases the gravity of the
offence, because the offensive words were heard not only by the victim,
but also by a large group of persons...

The fact that the [applicant] apologised to the
victim after being invited to do so by the [Minister of Justice] does
not remove the criminal character of his act or its harmful consequences.
By uttering words which were humiliating for the victim, [the applicant]
completed the offence and the harmful consequences arose. The derogation
of the victim’s reputation was irreversible. The fact [that the applicant
apologised] must, however, be taken into consideration for the purpose
of assessing the gravity of the offence ... and for the purpose of sentencing.

The defence’s argument that the [applicant’s]
act was not criminal because it was in fact the expression of a personal
criticism by a person exercising his freedom of expression ... cannot
be sustained. The right to freedom of expression carries the duty, set
out in Article 39 § 2 of the Constitution, not to exercise this right
to the detriment of the reputation of another. The present case represents
an abuse of this right, because the personal disproval of [Mr S.] which
the [applicant] expressed publicly had a humiliating content. The negative
opinion was expressed indecently, in an insulting and humiliating manner,
which is contrary to the law. This implies that the [statement] was
contrary to both Article 146 of the Criminal Code and Article 39 of
the Constitution and Article 10 of the European Convention for Human
Rights ..., which enshrine the right to freedom of expression, but in
the bounds of decency, respect for the rights of every member of society,
tolerance and respect for the reputation of the others...”

18. The applicant appealed to the Sofia City Court.
His counsel again argued that the applicant’s remark had not been
couched in offensive terms, that he had expressed his personal views
in an entirely acceptable way and that a penalty imposed on him for
having voiced an opinion ran counter to his freedom of expression.

19. The prosecution appealed as well, requesting
an increase of the applicant’s sentence.

20. The Sofia City Court held a hearing on 27
November 1995.

21. In a judgment of 23 January 1996 the Sofia
City Court dismissed the applicant’s and the prosecution’s appeals.
It held, inter alia, as follows:

“The [court below] correctly concluded that
the [applicant’s] words had an insulting content. The expression was
examined by the district court in accordance with the meaning which
was put in it – a disapproval of the ethical and moral qualities of
[Mr S.], which was incompatible with his being in charge of the budgetary
funds of the judiciary; a disapproval aiming to impinge on the victim’s
personal dignity. The [words] were analysed by the first-instance court
in view of their objective potential to impinge on the dignity of the
victim, because they exceeded the bounds of ethical communication and
the generally accepted rules of decency.

The defence’s arguments ... that the [words]
in issue were in fact the [applicant’s] personal opinion, the expression
of which is protected by the rule of Article 39 of the Constitution,
are unfounded. The district court was correct in concluding that the
expression of a personal opinion about someone, even though a constitutionally
protected right, should not exceed the bounds set out in paragraph 2
of [Article 39 of the Constitution]. In other words, the right to freely
express one’s opinion may not be used to infringe the rights and reputation
of another...

In its reasoning the district court examined
all arguments of the defence, relying on the courts’ constant case-law
under the Constitution and the European Convention for Human Rights.
...”

22. On 2 April 1998 the applicant lodged a petition
for review with the Supreme Court of Cassation, claiming that the lower
courts’ judgments were unfounded and in breach of the law.

23. On 27 April 1998 the Supreme Court of Cassation
accepted the petition for examination and listed the case for hearing.

24. The court held a hearing on 10 June 1998.
It heard the parties’ argument and reserved judgment. Prior to the
hearing the applicant’s defence presented written observations, in
which it argued that the lower courts’ judgments were unfounded and
unlawful. In particular, the courts’ holding that the applicant’s
words were offensive was arbitrary. On the opposite, they were not rude,
vulgar or cynical, but completely neutral. The defence also reiterated
its submissions in respect of the applicant’s right to voice personal
opinions.

25. The Supreme Court of Cassation delivered its
judgment on 8 July 1998, dismissing the petition in the following terms:

“[The words] used by [the applicant] in the
presence of [Mr S.] were humiliating and it cannot be accepted that
this was in line with the rule of Article 39 of the Constitution, which
guarantees to all Bulgarian citizens the possibility to express their
personal opinion and criticise other persons. This possibility is subject
to and dependent on the limitations of paragraph 2 [of this Article],
according to which this right should not be used for impinging on the
reputation of another. In the case at hand there has been an abuse of
the right under paragraph 1 [of this Article], because the personal
opinion, expressed by [the applicant] in respect of [Mr S.] has a disparaging
content. The negative opinion is expressed in an indecent, insulting
and humiliating manner... As such it falls under the prohibition of
Articles 148 [and] 146 of the Criminal Code, because it not only goes
against Article 39 § 1 of the Constitution, but also against Article
10 of the European Convention for Human Rights ... which enshrine the
right to freedom of expression, but within the bounds of decency, respect
for the rights of the person, tolerance, and protection of the reputation
of the others. These rules are valid in all civilised and democratic
societies.

It is unconstitutional and criminally liable
to ‘criticise’ in an insulting manner, as has been done in the case
at hand. The words which were used had an insulting content, because
they debased the victim’s dignity and his authority before the other
members of the [Supreme Judicial] Council. They contained a disapproval
of his moral and ethical qualities which is incompatible with his function
as a person disposing with budgetary funds. What was said could be interpreted
in one manner only: that the person in question has a tainted consciousness
and lacks morality; it was aimed at impinging the honour and dignity
of [Mr S.]. ...”

26. The applicant paid the fine on 9 May 1996.
He was not publicly reprimanded and on 23 March 1999 a prosecutor of
the Sofia District Prosecutor’s Office ordered that his sentence was
not to be enforced because the relevant limitation period had expired.

II. RELEVANT DOMESTIC LAW

A. The Constitution

27. Article 39 of the Constitution of 1991 provides:

“1. Everyone is entitled to express an opinion
or to publicise it through words, written or oral, sound, or image,
or in any other way.

2. This right shall not be used to the detriment
of the rights and reputation of others, or for the incitement of a forcible
change of the constitutionally established order, the perpetration of
a crime, or the incitement of enmity or violence against anyone.”

B. The Criminal Code and the Code of Criminal
Procedure

28. Article 146 § 1 of the Criminal Code, as
in force at the relevant time, provided:

“Whoever says or does something degrading for
the honour or the dignity of another in his presence shall be punished
for insult by up to six months’ imprisonment or a fine of up to three
thousand levs. The court may also impose a public reprimand.”

29. If an insult has been made in public, or against
an official in the performance of his duties, or by an official in the
performance of his duties, it was punishable by up to two years’ imprisonment
or a fine of up to BGL 5,000 (Article 148 § 1(1), (3), and (4) of the
Criminal Code, as in force at the relevant time).

30. At the relevant time insult was privately
prosecutable in all cases, save when perpetrated in respect of or by
an official, in which case it was publicly prosecutable (Article 161
of the Criminal Code, as in force at the relevant time, in conjunction
with Article 146 § 1 and Article 148 § 1 (1) and (2) thereof). At present
insult is privately prosecutable in all cases without exception (Article
161 § 1 of the Code, as amended in March 2000 and presently in force).

31. By Article 60 § 1 of the Code of Criminal
Procedure of 1974, the victim of a criminal offence may make a civil
claim in the context of the criminal proceedings, and request compensation
for the damage sustained as a result of the offence. He or she may also
take part in the criminal proceedings as a private prosecuting party
alongside the public prosecutor (Article 76 of the Code of Criminal
Procedure of 1974).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10
OF THE CONVENTION

32. The applicant complained that he had been
convicted for having expressed his personal opinion about the deputy
Prosecutor-General. He relied on Article 10 of the Convention, which
provides, as relevant:

“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority
and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the authority
and impartiality of the judiciary.”

A. The parties’ submissions

1. The applicant

33. The applicant submitted that he had expressed
his personal opinion about Mr S. According to Bulgarian law, expressing
a personal opinion in a decent manner was not an offence.

34. The applicant pointed out that at the time
when he had expressed his opinion about Mr S. the latter had been deputy
Prosecutor-General. It had been years later that he had been elected
as president of the Supreme Administrative Court and member of the Constitutional
Court. In any event, the mere fact that a person had a special status
was not sufficient to warrant special treatment.

35. The Court had many times ruled that the exceptions
to freedom of expression had to be narrowly interpreted and the necessity
for any restrictions had to be convincingly established. In addition,
the restrictions under paragraph 2 of Article 10 of the Convention should
not be used to restrict the possibility to express one’s personal
opinion.

36. The applicant pointed out that he had expressed
his opinion before the Supreme Judicial Council, a body having solely
staffing and organisational duties, and not judicial ones. It was thus
farfetched to argue that by expressing his opinion before it he had
infringed the authority and impartiality of the judiciary. This restriction
derived from the common law concept of contempt of court. The applicant’s
situation was obviously materially different. Moreover, this motive
– maintaining the authority of the judiciary – could not be used
as grounds for restraining criticism of a prosecutor.

37. The applicant finally submitted that the Government’s
argument that his words implied that Mr S. lacked morality and could
thus undermine the trust in the judiciary as a whole could not be accepted.
The Bulgarian Supreme Court’s case-law was constant on the point that
making implications could not carry criminal responsibility.

2. The Government

38. The Government submitted that the applicable
domestic law was formulated with sufficient precision to allow the persons
concerned to foresee the consequences of their actions. The clear definition
of the offence was a guarantee against arbitrary encroachment by the
authorities upon the citizens’ freedom of expression.

39. The interference had also pursued a legitimate
aim, namely to protect the rights and reputation of others.

40. The interference had also been necessary.
It was beyond doubt that the reputation and dignity of a high-ranking
magistrate were subject to enhanced protection. Mr S.’s subsequent
election as a judge in the Constitutional Court was proof of his high
moral and professional qualities. It was true that the applicant’s
words represented his personal opinion, but this opinion had unjustifiably
infringed the reputation of a member of the Supreme Judicial Council
who had been entrusted with dealing with the budget of the judiciary.
The suggestion contained in the applicant’s words could thus undermine
the trust in the judiciary as a whole.

41. Having diligently examined the arguments raised
by the applicant’s defence, the domestic courts had struck a proper
balance between Mr S.’s reputation and the applicant’s freedom of
expression. The courts had reviewed all relevant circumstances and had
delivered carefully considered judgments. The balance was also apparent
from the punishment imposed on the applicant: while the courts could
sentence him to imprisonment, they had opted for the lesser penalty
– a fine and a public reprimand. Moreover, these punishments had not
been enforced.

42. Article 39 of the Bulgarian Constitution and
Article 10 of the Convention enshrined the right to freedom of expression.
However, that right was not absolute. It could be interfered with for
the protection of the reputation and rights of others. Imposing criminal
liability for insult was proportionate to the character of the protected
value. The level of limitation of the freedom of expression was dependent
on the importance of the value.

B. The Court’s assessment

43. It was not disputed that the applicant’s
conviction and sentence by the national courts following his remark
about the deputy Prosecutor-General amounted to an interference with
his right to freedom of expression. Such interference will be in breach
of Article 10 if it does not meet the requirements of paragraph 2 thereof.
It should therefore be determined whether it was prescribed by law,
pursued one or more of the legitimate aims set out in that paragraph
and was necessary in a democratic society in order to achieve those
aims.

45. The Court further accepts that the interference
pursued the legitimate aim of protecting Mr S.’s reputation. However,
in view of the facts that the applicant’s remark was uttered at a
meeting of an administrative body held behind closed doors and that
no form of publicity was involved, the Court is not persuaded that it
also served to maintain the authority and impartiality of the judiciary.

46. It remains to be established whether the interference
was necessary in a democratic society.

47. On this point, the Court starts by reiterating
the relevant principles which emerge from its judgments:

(i) Freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and for each individual’s
self-fulfilment. Subject to paragraph 2, it is applicable not only to
“information” or “ideas” that are favourably received or regarded
as inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of that pluralism, tolerance
and broadmindedness without which there is no “democratic society”.
As set forth in Article 10, this freedom is subject to exceptions, which
must, however, be construed strictly, and the need for any restrictions
must be established convincingly.

(ii) The adjective
“necessary”, within the meaning of Article 10 § 2, implies the
existence of a “pressing social need”. The Contracting States have
a certain margin of appreciation in assessing whether such a need exists,
but it goes hand in hand with a European supervision, embracing both
the legislation and the decisions applying it, even those given by an
independent court. The Court is therefore empowered to give the final
ruling on whether a “restriction” is reconcilable with freedom of
expression as protected by Article 10.

(iii) In exercising
its supervisory jurisdiction, the Court must look at the impugned interference
in the light of the case as a whole, including the content of the remarks
held against the applicant and the context in which he made them. In
particular, it must determine whether the interference in issue was
“proportionate to the legitimate aims pursued” and whether the reasons
adduced by the national authorities to justify it are “relevant and
sufficient”. In doing so, the Court has to satisfy itself that the
national authorities applied standards which were in conformity with
the principles embodied in Article 10 and, moreover, that they based
themselves on an acceptable assessment of the relevant facts (see Janowski v.
Poland [GC], no. 25716/94, § 30, ECHR 1999-I, with further references).

48. Turning to the facts of the present case,
the Court notes that the victim of the insult was a high-ranking official,
the deputy Prosecutor-General, who also dealt with budgetary matters
in the judicial system. Therefore, while not limitless, the bounds of
acceptable criticism geared toward him were wider than in relation to
a private individual. It is true that he did not lay himself open to
public scrutiny and needed to enjoy confidence in conditions free of
undue perturbation when on duty (see Janowski, cited above, § 33; and, mutatis mutandis, Steur v. the Netherlands, no. 39657/98, §§ 40 and 41, ECHR
2003-XI). However, the need to ensure that civil servants enjoy public
confidence in such conditions can justify an interference with the freedom
of expression only where there is a real threat in this respect. The
applicant’s remark obviously did not pose such a threat and did not
hinder Mr S. in the performance of his official duties (see, mutatis mutandis, Yankov v. Bulgaria, no. 39084/97, § 142, ECHR 2003-XII). In
this connection, it should also be borne in mind that, unlike the situation
obtaining in Janowski, where two municipal guards had been insulted in the
street, while performing their policing duties, in front of numerous
bystanders (see Janowski, cited above, §§ 8 and 34), the applicant’s remark
was made in front of a limited audience, at a meeting held behind closed
doors. Thus, no press or other form of publicity was involved (see, mutatis mutandis, Nikula v. Finland,
no. 31611/96, § 52 in limine, ECHR 2002-II; Yankov, cited above, §§ 139 and 141; and, as an example to
the contrary, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 79,
ECHR 2004-XI). The negative impact, if any, of the applicant’s words
on Mr S.’s reputation was therefore quite limited.

49. Moreover, in view of the applicant’s previous
professional interactions with Mr S. (see paragraph 8 above), his opinion
about the latter, expressed at a meeting at which the Supreme Judicial
Council was dealing with budgetary issues, could be considered as forming,
to a certain extent, part of a debate on a matter of general concern,
which calls for enhanced protection under Article 10. It should also
be noted that the applicant apparently uttered the remark formed on
the basis of material which he offered to produce in corroboration (see
paragraph 10 above).

50. Another factor on which the Court places particular
reliance is that the applicant was not subjected to a civil or disciplinary
sanction, but instead to a criminal one (see, as examples to the contrary, P. v. the United
Kingdom, no. 11456/85, Commission decision of 13 March 1986,
Decisions and Reports 46, p. 222; Meister v. Germany, no. 30549/96, Commission decision of 10
April 1997, unreported; Fuentes Bobo, cited above; De Diego Nafría, cited above; Vides Aizsardzības Klubs v. Latvia, no. 57829/00, 27 May 2004;
and Steel
and Morris v. the United Kingdom, no. 68416/01, ECHR 2005-...).
It is true that the possibility of recurring to criminal proceedings
in order to protect a person’s reputation or pursue another legitimate
aim under paragraph 2 of Article 10 cannot be seen as automatically
contravening that provision, as in certain grave cases – for instance
in the case of speech inciting to violence – that may prove to be
a proportionate response. However, the assessment of the proportionality
of an interference with the rights protected thereby will in many cases
depend on whether the authorities could have resorted to means other
than a criminal penalty, such as civil and disciplinary remedies (see Lehideux and
Isorni v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2886, § 51 in fine
and p. 2887, § 57; and, mutatis mutandis, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 115,
ECHR 2004-XI). The Court further notes that the criminal proceedings
against the applicant were instituted on the insistence of Mr S.’s
superior, the Prosecutor-General, who reacted on the spot, characterising
the applicant’s remark as a “crime” immediately after it had been
uttered, and shortly after that instructing the Sofia City Prosecutor’s
Office to open a preliminary inquiry against the applicant (see paragraphs
10 and 11 above). Mr S. did not participate as a party to them and did
not make a claim for non-pecuniary damages against the applicant, as
he could have done (see paragraphs 30 and 31 above; and also Fuentes Bobo, cited above, § 48 in fine). In this connection, the Court notes that later the
relevant provisions of the Bulgarian Criminal Code were amended and
at present provide that insult is privately prosecutable in all cases
without exception (see paragraph 30 above and, mutatis mutandis, Cumpǎnǎ and Mazǎre, cited above, § 115 in fine).

51. It should also be observed that the applicant’s
remark, while liable to be construed as a serious moral reproach, was
apparently made in the course of an oral exchange and not in writing,
after careful consideration (see Fuentes Bobo v. Spain, no. 39293/98, § 48, 29 February 2000;
and, as an example to the contrary, De Diego Nafría v. Spain, no. 46833/99, § 41, 14 March 2002).
Against this background, the reaction of the Prosecutor-General –
who was Mr S.’s hierarchical superior –, the resulting criminal
proceedings against the applicant, and his conviction seem as a disproportionate
response to the incident in issue. In this connection, the Court reiterates
that the dominant position which those in power occupy makes it necessary
for them to display restraint in resorting to criminal proceedings,
particularly where other means are available for replying to the unjustified
criticisms of their adversaries (see, mutatis mutandis, Castells v. Spain, judgment of 23 April 1992, Series A no. 236, pp. 23-24,
§ 46; and Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999-IV). The
applicant’s resulting sentence – a fine and a public reprimand –,
while being in the lower range of the possible penalties, was still
a sentence under criminal law, registered in the applicant’s criminal
record (see Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98,
§ 32, ECHR 2003-XI).

52. On the basis of the foregoing considerations
the Court concludes that no sufficient reasons have been shown to exist
for the interference in question. The restriction on the applicant’s
right to freedom of expression therefore fails to answer any pressing
social need (see Steur, cited above, § 45) and could not be considered necessary
in a democratic society.

53. There has therefore been a violation of Article
10 of the Convention.

II. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

54. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

A. Damage

55. The applicant claimed 30,000 euros (EUR) in
non-pecuniary damages for the distress he had suffered as a result of
the violation of his freedom of expression. He submitted that the criminal
proceedings against him and his conviction had injured his reputation
among his relatives, friends and colleagues in the legal community,
and had had a negative impact on his health. Furthermore, he had had
to suffer the humiliation of a public reprimand, which had been read
before his colleagues. Finally, his conviction had resulted in his having
been reduced in rank and salary for six months at the Ministry of Justice.

56. The applicant further claimed 27 United States
dollars (USD) in pecuniary damages, which represented the value of the
fine which he had been ordered to pay.

57. The Government submitted that no causal link
had been established between the criminal proceedings against the applicant
and the worsening of his state of health. Nor could it be considered
abnormal that he had been publicly reprimanded following his conviction
by a competent court. Finally, it had not been conclusively established
that the applicant’s rank and salary had been reduced as a result
of his conviction. In sum, the Government were of the view the sum claimed
as non-pecuniary damages was grossly exorbitant.

58. The applicant replied that while he had suffered
from certain illnesses before, they had doubtless aggravated as a result
of the stress brought on him by the criminal proceedings. Furthermore,
the public reprimand, administered in front of his colleagues, had come
on top of the publicity of his conviction, which had been delivered
in open court. Finally, the reason why the reducing of his rank and
salary could not be proved was that the relevant archives had been destroyed.

59. Noting that the applicant’s claim resulted
from the fine imposed on him by the Bulgarian courts, the Court awards
EUR 23 in respect of pecuniary damage, plus any tax that may be chargeable
on this amount (see Scharsach and News Verlagsgesellschaft, cited above, § 50;
and Hrico
v. Slovakia, no. 49418/99, § 55, 20 July 2004).

60. The Court further considers that the applicant
must have suffered non-pecuniary damage as a result of the violation
of his freedom of expression. Having regard to the nature of the violation
found in the present case and deciding on an equitable basis, the Court
awards the applicant EUR 2,000 in compensation for non-pecuniary damage,
plus any tax that may be chargeable on this amount.

B. Costs and expenses

61. The applicant sought the reimbursement of
USD 10,000 of legal fees incurred in the proceedings before the Court,
set as a lump sum in a fees’ agreement with his lawyer. He also claimed
EUR 760 for translation costs, copying, mailing, and overhead expenses.
The applicant submitted a fees’ agreement between him and his lawyers,
and invoices for translation and editing services and for postage.

62. The Government submitted that the amount claimed
was excessive and way beyond the usual fees paid to lawyers in Bulgaria.
They requested the Court to have regard to the fact that such large
amounts would pose a heavy burden on the taxpayers in the country.

63. The applicant replied that his lawyer’s
fees had been set in line with the specifics of the case and in particular
his bad state of health, which required the lawyers to visit him in
his home every time they had to discuss questions relating to the conduct
of the case.

64. According to the Court’s case-law, costs
and expenses are reimbursable only in so far as it has been shown that
they have been actually and necessarily incurred and were reasonable
as to quantum. In the instant case, having regard to all relevant factors
and noting that the applicant was paid EUR 685 in legal aid by the Council
of Europe, the Court awards him EUR 1,500, plus any tax that may be
chargeable on this amount.

C. Default interest

65. The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 10 of the
Convention;

2. Holds

(a) that the respondent State is to pay
the applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into Bulgarian levs at the rate
applicable at the date of settlement:

(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the
above amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;

3. Dismisses the remainder of the applicant’s claim for just
satisfaction.

Done in English, and notified in writing
on 20 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.